“Conned About Marriage, Constitution And ‘States’ Rights'” is the current column, now on WND. An excerpt:
The ban on the ban is unconstitutional.
This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.
At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”
Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”
But that was then.
In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.
What does this mean?
If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be. …
… Either way, the freedoms afforded by federalism are no longer because American federalism is no longer. …
… Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene. …
Read the complete column. “Conned About Marriage, Constitution And ‘States’ Rights'” is now on WND.
JOIN THE CONVERSATION:
• At the WND Comments Section. Scroll down and “Say it.”
• On my Facebook page.
• By clicking to “Like,” “Tweet” and “Share” this week’s “Return To Reason” column.
If you’d like to feature this column, WND’s longest-standing, exclusive paleolibertarian column, in or on your publication (paper or pixels), contact firstname.lastname@example.org.
UPDATED I (1/24): American constitutional federalism is about process, rather than what law you like or don’t. The process is clear. The Courts were never meant to tell people how to run their homes and communities. It’s a column I’ve been wanting to write for a while. It’s quite disturbing how little people understand about a structure/scheme that is no longer and that was intended to protect liberty. The 14th is a real problem, as it killed the 10th.
UPDATE II: Facebook thread:
Todd Frank: The post-civil war Republicans did not think several things through when they drafted the 14th amendment. That said, there still has to be some sort of remedy when states themselves trample on the rights of the individual short of giving the US government carte-blanche to do whatever they want to us.
Ilana Mercer : Todd Frank, you make a good point. But just about every state had itself a constitution with a bill of rights.